Mr. Justice Beetz in his concurring opinion on the Morgentaler case before the Supreme Court compared the views of Justice Sandra O’Connor, of the U.S. Supreme Court, with those of Madam Justice Bertha Wilson of the Canadian Supreme Court. The argument at issue relates to the question when the state’s interest to protect the foetus would become compelling.
Justice O’Connor, who has labeled the trimester approach to abortion as “out-moded” and who in Akron, in 1983, criticized the idea of potential life, is quoted by Mr. Justice Beetz as follows:
“In Roe [Roe v. Wade] the Court held that although the State had an important and legitimate interest in protecting potential life, that interest could not become compelling until the point at which the fetus was viable. The difficulty with this analysis is clear: potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life. Although the Court refused to ‘resolve the difficult question of when life begins,’ the Court chose the point of viability – when the fetus is capable of life independent of its mother – to permit the complete proscription of abortion. The capable of viability as the point at which state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward. Accordingly, I believe that the State’s interest in protecting potential human life exists throughout the pregnancy.” (Emphasis is Justice O’Connor’s)
Mr. Justice Beetz also quoted from Madame Justice Wilson’s opinion to show the conflict of views. “The precise point in the development of the foetus at which the state’s interest in its protection becomes ‘compelling’ I leave to the informed judgment of the legislature which is in a position to receive guidance on the subject from all the relevant disciplines. It seems to me, however, that it would fall somewhere in the second trimester.”
First, Justice Wilson gives a nod to Parliament and admits (what all the Court agrees to) that Parliament has the right to legislate on abortion. The legislature has, she says, the means of receiving guidance from the “relevant disciplines,” and one would assume these disciplines would be medical and scientific, e.g. genetics, fetology, etc. It is both interesting and instructive to note that Madame Justice Wilson does not feel it necessary, in her case, to wait for the experts’ words. Instead, she throws in her two-cents worth of gratuitous advice, as though she expects a special value should be given to her opinion.
Wilson v. Burger
Madame Justice Wilson uses the United States Supreme Court’s cases to bolster her pro-abortion stance, stance, and says that other cases, including Thornburgh in 1986, reaffirm Roe.
Chief Justice Burger of the U.S. Supreme Court does not agree. His written dissent in Thornburgh showed his concern, his distress even, that in 1973 he had not heeded the warnings of the consequences that would follow Roe. Said Burger: “In short, every member of the Roe Court rejected the idea of abortion on demand. The Court’s opinion today, however, plainly undermines that important principle, and I regretfully conclude that some of the concerns of the dissenting Justices in Roe, as well as the concerns expressed in my separate opinion, have now been realized. The extent to which the Court has departed from the limitations expressed in Roe is readily apparent.”
Burger went on to say that Roe had ruled that the State had a legitimate interest in protecting a woman’s health. However, when the legislature of Pennsylvania required that women contemplating abortions be given accurate medical information about the surgical procedures, and the risks involved, the Supreme Court struck down the law as invalid.
“Can it possibly be that the Court is saying that the Constitution forbids the communication of such critical information to a woman?” asks Burger. In another place, he asks: “Can anyone doubt that doctors routinely give similar information concerning risks in countless procedures having far less impact on life and health, both physical and emotional than an abortion, and risk a malpractice lawsuit if they fail to do so?” (Stress is Burger’s)
Chief Justice Burger went on to quote Roe’s ruling that at viability the State’s interest in protecting the foetus becomes “compelling.” Despite this, the Court ruled in Thornburgh that the Pennsylvania statute requiring that a second physician be present at a late abortion to “take control of the child and … provide immediate medical care” was invalid. Rather bitterly Burger added “Undoubtedly the Pennsylvania Legislature added the second physician requirement on the mistaken assumption that this Court meant what it said in Roe concerning the ‘compelling interest’ of the states in potential life after viability.
Burger closed his opinion in Thornburgh with the words: “I agreed we should re-examine Roe.”
Chief Justice Burger, who supported Roe in 1973, is now one of its major critics. He has dismantled the arguments of Madame Justice Wilson before she even made them.
Marian Powell Report
There is one final point. The extensive use of the Powell Report as a basis for its decision is one of the many disquieting aspects of the Supreme Court’s judgment. The Report was not even written when the Court heard the Appeal, so obviously it was not part of the evidence. The justices, therefore, had no opportunity to hear, under oath, witnesses who contributed to an, as yet, non-existent Report. Furthermore, the Crown had no opportunity to rebut the findings of the Marian Powell Report, because at the time of the appeal there was no report in existence. The openly-admitted fact that Dr. Marian Powell has, for long years, been a leading advocate for abortion on demand, and the well –founded suspicion that she was hardly likely to be unbiased, or to deal even-handedly in collecting and presenting her material ought to have prevented the Court from swallowing her findings whole.
Mr. Justice McIntyre was obviously not too happy about some of the materials used in the decision. He wrote “While I recognize that in constitutional cases a greater latitude has been allowed concerning the reception of such material, I would prefer to place principal reliance upon the evidence given under oath in court in my consideration of the factual matters.”
The introduction of materials that were not even produced until long after the Appeal, their acceptance by the Court without the formality of an oath, the total lack of opportunity for the Crown to question the validity of such materials, all undermine one’s belief in the judicial system.
Justice was not seen to be done.